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If Nicole Kidman and Keith Urban had hired an overseas surrogate to carry baby Faith Margaret while living in any of their NSW homes, and then returned with their baby,they would be subject to fines and jail sentences, under the terms of the amendment to surrogacy legislation introduced by NSW Minister for Community Services, Linda Burney.

On March 1 2011 NSW legislation on surrogacy will pass into law, making commercial surrogacy illegal in the State.

Linda Burney has added an extra territorial amendment to the original surrogacy bill, extending the criminalisation of commercial surrogacy to those who employ overseas surrogates.

The penalties for using an overseas surrogate will be a fine of some $110,000, and/or two years jail.

As well, the child parents bring home will have no legal rights and protection, as do all other children in NSW, regardless of the method of their conception.

Parents may apply for parentage orders for their children, however in doing so will run the risk of criminal prosecution, with fines and possible jail terms.

This would seem a powerful disincentive to applying for appropriate orders, leaving the children in a right-less and unprotected limbo.

As well, Burney’s amendment assumes that all those seeking overseas surrogacy arrangements will look for underprivileged women who need the money.

There are many commercial surrogates overseas who are middle class women, and who make an informed choice to carry a child for another woman.

The Minister’s justifications

Minister Burney’s justification for the extra territorial clause is that she wishes to, in her language, punish those who “take advantage of women who hire out their bodies because they are poor.” Criminalizing those who have been unable to find altruistic surrogates in NSW and turn instead to women overseas is the realisation of Burney’s desire to punish.

It is unrealistic in the extreme to expect this criminalizing of a minority group of NSW citizens will make any dent at all in the exploitation of women in countries where commercial surrogacy is legal. One might as well criminalize everyone who buys a t-shirt made in a Bangkok sweatshop by six year old children who are paid 20 cents a day for their labours.

Or what about the Australian citizens who travel overseas for say, a kidney transplant to a country where the traffic in human organs is unregulated and people sell the parts they can live without for an income? Are we going to criminalize those citizens and prosecute them when they come home with their new illegal part on board?

A divisive issue

Commercial surrogacy is a morally divisive issue. Those against it argue that it results in the depersonalisation of pregnancy and childbirth, and that it treats both women and children as commodities. Wealthy couples can “rent a womb” from financially vulnerable women, and this, in the eyes of some, is exploitation of the worst kind.

Commercial surrogacy is felt by some to be degrading to both women and children. It is perceived as morally offensive, and as treating other human beings merely as a means to an end.

There are potential emotional difficulties on all sides, including that of the child.

The argument for (briefly)

Those who argue for commercial surrogacy point out that it is a matter of personal autonomy for all the adults involved. If a woman wishes to act as a surrogate that is her business, they argue, and she is entitled to remuneration for her time and work.

To proscribe commercial surrogacy on the grounds that it’s harmful to those undertaking it is interference by the State in personal matters that are not the State’s business, and that belong in the realm of the private conscience, some argue. It is not acceptable, this argument continues, for the State to impose and enforce one moral aspect against private actions that do not harm others.

What is Burney’s amendment good for?

It seems highly unlikely that Burney’s amendment will prevent couples seeking commercial surrogacy overseas. What it will most certainly achieve is the legal alienation of the resulting children in this State. It will cause parents to conceal their activities, perhaps even from their own families, for fear of prosecution.

It will cast an unacceptable and permanent cloud over such families and their children. It will drive those having no option but commercial surrogacy, underground.

And for what?

To satisfy Burney’s need to take a moral stand against the laws of other countries.

Moral stands are often good and necessary things, but only when they’re realistically weighed up against their usefulness, and their consequences. In this case the usefulness of such a moral stand would seem to be minimal. The consequences, on the other hand, are horrible and permanent for the families concerned.

The reality is that couples needing the services of a surrogate are going to find one, somehow, somewhere. Those of us, who like Ms Burney have not needed to take this drastic action in order to create our families, need to be especially careful when prescribing for and judging those less fortunate in that respect.

It is an especially weighty responsibility for Burney, as she is in a privileged position. She has the power to create a situation in which those less fortunate than herself are criminalized, and their children cast into a legal limbo.

Burney’s extra territorial amendment could well be seen by some as an abuse of her power. Perhaps it isn’t a politician’s role to punish those he or she disagrees with, on moral grounds that are far from unanimous in the community.

Perhaps it is especially distasteful when a politician acts on a personal desire to punish constituents who are already struggling with the fraught issue of creating their family.

As a poster points out, the term “gestational carrier” refers specifically to a surrogate who has no biological ties to the infant she carries. The term “traditional surrogacy” is used when the surrogate is the infant’s natural mother. In using the term, the couple were making this distinction public.

Tankard Reist claims the term “strips the woman of her humanity.” She continues:

THE objectification of women’s bodies and commodification of childbirth came together yesterday in a single antiseptic phrase contained in the announcement of a second child for actress Nicole Kidman and her musician husband Keith Urban.

Wow. Welcome to the world, baby Faith. But quickly! Cover the baby’s ears somebody, please! Don’t let that bad fairy hovering over her cradle ill-wish the child with this dark description of her genesis.

Surely MTR can’t be suggesting Kidman and Urban are guilty of objectification and commodification in their dealings with their gestational carrier?

And if she is, how does she know?

MTR then refers to “womb slavery in India,” the “disposable uterus,” and tells several horrible stories of surrogacy arrangements gone badly wrong.

Quite what the link is between baby Faith’s happy birth and these dark stories is unclear. Except that MTR has seized the occasion to once again promote her one-sided perceptions of surrogacy.

She certainly is a glass half empty kind of gal. Apparently, because a situation carries the possibility of exploitation that’s the only aspect of it we should consider. And then we should ban it. No mention anywhere of successful surrogacies and the ensuing joys. No stories from women who’ve generously carried an infant for other women who couldn’t, and been glad and proud to have been the bearers of great happiness.

But that’s not all. Today’s post is almost identical with a piece MTR wrote in the Sydney Morning Herald , November 8 2006 after the birth of Senator Stephen Conroy and wife Paula Benson’s baby, also carried by a surrogate. Apparently MTR hasn’t been able to find more recent horror stories to tell about surrogacy in the ensuing five years, because she uses the same examples.

A visit the to the website unbelief.org reveals where MTR is coming from. Briefly, she founded the Women’s Forum Australia, a “pro-life” feminist organization or an “anti-choice” feminist organization, depending on your point of view. For twelve years she worked for ultra-conservative Tasmanian Senator Brian Harradine as his bioethics advisor. During his time with MTR, Harradine successfully negotiated a long standing ban on the drug RU 486, known in some circles as the “abortion pill.”

In her rhetoric against abortion MTR makes repeated and unproven claims that it is linked to incidences of breast cancer.

MTR shows up, always invited,at occasions and conferences run by religious organizations as various as Opus Dei, the Festival of Light, the Australian Christian Lobby, and Warwick Marsh’s conservative Christian “fathers’ rights” association. Bill Meuhlenberg, religious ethicist opposed to homosexuality, is also a fan.

Who was it said by their friends ye shall know them?

It’s probably quite sad to be someone who takes the occasions of other peoples’ joy, and uses them to highlight only darkness. Yes, there are undoubtedly situations in which surrogacy arrangements are far from equitable. Yes, there may be difficulties when the child wants to know her origins. Yes, Melinda, there is nothing in the world that doesn’t have its dark side. One of the challenges of life is to find our way through them into the light. Banning them all won’t cut it.

Put a case against surrogacy by all means. It should be out there, we need to be fully informed.

But do you have to cast your doom and gloom over the two occasions when the people involved seem loving and decent, and probably aren’t doing anything wrong to anybody in their desire to have and raise a child?

And isn’t it a little tiny bit opportunistic to seize these high profile cases on which to hoist your banner of propaganda?

BTW. Tankard Reist has apparently successfully produced four children of her own. Therefore she has never had to deal with the feelings of a woman who wants to carry and give birth to her child, but can’t.

How does she know the Kidman/Urban fertility status?

Count your blessings, Tankard Reist, and don’t judge those who aren’t as fortunate.

PS: I think there’s something in the theory that we see what we choose to see. That we construct our own reality. MTR sees only darkness, misery and exploitation in surrogacy. That’s her vision. She’s entitled to it.

But she isn’t entitled to prescribe that vision for everyone. She isn’t entitled to project that darkness onto people she doesn’t even know. It’s her darkness. We don’t all have to get down there in it with her.